Docket: T-2069-15
Citation:
2017 FC 439
Ottawa, Ontario, May 3, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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ZAKI HIDEQ
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant, Mr. Hideq arrived in Canada from
Lebanon in 1993 and was employed here between 1994 and 1998 in a variety of
positions. In 1998 he began work as a door person and then in 2000 as a valet
at “Casino Windsor”.
[2]
In 2000, he was involved in a car accident at
the Casino Windsor underground parking garage. As a result of the accident he indicated
he suffered from neck, back and foot pain. Due to functional limitations
relating to the injuries suffered he was subsequently assigned to the Casino
Windsor security department until he was laid off in 2004. He was involved in a
second car accident in 2005 where he suffered a variety of injuries including
to his shoulder, neck and back.
[3]
He applied for CPP disability benefits in
October 2010. The application was denied both initially and upon
reconsideration. He appealed the negative decisions. The Social Security
Tribunal General Division General [SST-GD] dismissed the appeal. He was
subsequently denied leave to appeal the negative SST-GD decision to the Social
Security Tribunal – Appeal Division [SST-AD]. It is that decision that is
before the Court for judicial review.
[4]
Mr. Hideq is seeking an Order from this Court
reversing the SST-AD decision and directing the payment of CPP disability
benefits retroactive to the onset of his initial application. The respondent
takes issue with the remedy being sought, arguing that if the application is
granted the appropriate remedy would be to remit that matter back to the SST-AD
for re-determination of the leave to appeal question.
[5]
Mr. Hideq’s written submissions focus on alleged
errors in the SST-GD decision. However, as noted above the decision before this
Court is that of the SST-AD denying Mr. Hideq leave to appeal. The SST-GD decision
has been considered in the process of assessing whether the SST-AD committed a
reviewable error or rendered an unreasonable decision.
[6]
Section 58 of the Department of Employment
and Social Development Act, SC 2005, c 34 [DESDA] identifies the grounds of
appeal from an SST-GD decision and provides that the SST-AD shall refuse to
grant leave where it is satisfied the appeal has no reasonable chance of
success. Having considered the party’s written and oral submissions I can find
no basis to interfere with the SST-AD’s decision and therefore dismiss the application
for judicial review.
II.
Issue
[7]
The sole issue raised in this application is whether
the SST-AD decision denying leave to appeal was unreasonable.
III.
Standard of Review
[8]
The SST-AD’s decision denying leave is to be
reviewed against a standard of reasonableness (Tracey v Canada (Attorney
General), 2015 FC 1300 at paras 17-23 [Tracey], Canada (Attorney
General) v Hoffman, 2015 FC 1348 at para 27 [Hoffman], see also: Atkinson
v Canada (Attorney General), 2014 FCA 187 at paras 24-26). In applying this
standard the SST-AD is owed high level of deference (Hoffman at para
33).
IV.
Legislative Framework
[9]
For ease of reference, relevant portions of the Canada
Pension Plan, RSC 1985, c C-8 and the DESDA are reproduced at Appendix A to
this Judgment and Reasons.
[10]
Mr. Hideq’s denial of disability benefits was
appealed to the Office of the Commissioner of Review Tribunals. However,
pursuant to section 257 of the Jobs, Growth and Long-Term Prosperity Act,
SC 2012, c 19, the matter was transferred to the SST-GD in April 2013.
V.
Preliminary Matter
[11]
Respondent’s counsel relies on Federal Court
Rules, SOR/98-199 [the Rules] in submitting that the application
incorrectly names the Minister of Employment and Social Development, Social
Security Tribunal as the named respondents in this application. The respondent requests
that the style of cause be amended to reflect the Attorney General of Canada as
the respondent. The applicant does not oppose the amendment.
[12]
Sub-rule 303(1)(a) of the Rules requires that
the applicant name every person “directly affected by the order sought in the application, other
than a tribunal in respect of which the application is brought”. The Social Security Tribunal has been improperly named as a
respondent. It has also been held that government departments are not legal
entities and similarly cannot be named as parties. (Gravel v Canada
(Attorney General), 2011 FC 832 at paras 5 and 6). The style of cause is
amended naming the Attorney General of Canada as the sole respondent.
VI.
Analysis
[13]
In considering Mr. Hideq’s application for leave
to appeal the SST-AD correctly articulated and applied the test it was to apply
at paras 6 and 7 of the decision:
(6) Subsection 58(1) of the Department
of Employment and Social Development Act (DSEDA] sets out the grounds of
appeal as being limited to the following:
(a) The General Division failed to observe a principle of
natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) The General Division erred in law in making its decision,
whether or not the error appears on the face of the record;
(c) The General Division based its decision on an erroneous
finding of fact that it made in a perverse or capricious manner or without
regard for the material before it.
(7) The Applicant must satisfy me
that the reasons for appeal fall within any of the grounds of appeal and that
appeal has a reasonable chance of success, before leave can be granted.
[14]
In applying this test the SST-AD is expected to
review the underlying record and determine if the SST-GD failed to account for
any evidence, or if it misconstrued or overlooked evidence. Leave to appeal should
normally be granted where this review of the underlying record demonstrates the
evidence was not appropriately considered (Joseph v Canada (Attorney
General), 2017 FC 391 at paras 43 and 44, citing Griffin v Canada
(Attorney General), 2016 FC 874 at para 20 [Griffin] and Karadeolian
v Canada (Attorney General), 2016 FC 615 at paras 9 and 10).
[15]
Mr. Hideq’s written submissions focused exclusively
on a variety of concerns relating to the SST-GD decision. However in advancing
oral submissions his counsel relied on a single alleged error in the
consideration and treatment of the evidence before the SST-GD and the SST-AD’s
failure to recognize this error in considering the leave application.
[16]
Mr. Hideq argues that the SST-AD unreasonably
concluded that the SST-GD appropriately considered a comprehensive
rehabilitation and vocational assessment concluding that Mr. Hideq was totally
disabled from any occupation for which he would be seen as reasonably suited by
education, training or experience. He submitted that the SST-GD treatment of
this report was an erroneous finding made without regard for the material
before it and this report in actuality raised a ground of appeal that had a reasonable
chance of success.
[17]
In its decision the SST-GD sets out an extensive
summary of Mr. Hideq’s medical and work history. That review includes a summary
of the rehabilitation and vocational assessment at paragraph 49 of the SST-GD
decision where it is stated:
[49] On October 12, 2017, in a comprehensive
rehabilitation and vocational assessment, a psychometrist and rehabilitation
specialist, J. Kobayashi, stated that from a rehabilitative perspective, given
a combination of factors, i.e., physical restrictions and limited English
skills, the Appellant remains totally disabled from any occupation for which he
would be seen as reasonably suited by education, training and experience.
[18]
Having acknowledged the rehabilitation and
vocational assessment, the SST-GD then concluded at paragraph 83 that:
[83] Lastly the psychometrist, J.
Kobayashi, in her comprehensive assessment on October 12, 2007, opined the
Appellant, from a rehabilitative perspective, was totally disabled from any
occupation for which he would be seen as reasonably suited by education
training and experience. The Tribunal gives less weight to this statement as
from a real world perspective, the Appellant was clearly able to describe his
conditions and was able to answer any questions, exhibiting good language
skills,; he is still young, and his education is such that he could easily be
retrained in some occupation that would be suitable for his limitations; he
also has good experience, based on the types of employment that he had, including
having partnered in the ownership and operation of a business.
[19]
I am unpersuaded by Mr. Hideq’s submissions. Contrary
to the submissions of Mr. Hideq’s counsel, the vocational assessment was not uncontradicted.
There were three medical reports, one in December 2005, a second in June 2007
and a third in May 2009 all expressing the view that Mr. Hideq, despite his
undisputed disabilities, retained a capacity to work. In placing less weight on
the vocational report, the SST-GD articulated its rationale for coming to the
conclusion it did.
[20]
In considering the application for leave to
appeal the SST-AD also undertook a detailed consideration of each of the
identified grounds of appeal, including the treatment of the vocational
assessment. The SST-AD acknowledged that the SST-GD may not have referred
extensively to the vocational assessment but found the SST-GD articulated its
reasons for assigning said vocational assessment less weight.
[21]
The SST-AD reasonably concluded that the appeal did
not have a reasonable chance of success on this ground. It is not the role and
function of a reviewing court to reweigh and reconsider the evidence and
substitute its own view of a preferable outcome (Griffin at paras 14,
23).
[22]
While Mr. Hideq’s counsel focused solely on the vocational
assessment in arguing that the SST-AD decision was unreasonable, I have also considered
the remaining grounds for appeal advanced before the SST-AD. I am similarly
unable to conclude that the SST-AD conclusion that these grounds failed to
disclose a reasonable chance of success on appeal was unreasonable. The SST-AD
reasonably found that it was not the role of the Appeal Division to reweigh
evidence and that the SST-GD had considered and addressed the cumulative effect
of Mr. Hideq’s disabilities in rendering its decision, citing express
statements in the SST-GD to support this conclusion. It further reasonably
concluded that Mr. Hideq’s psychological state was considered as were his
attempts at self-employment. Mr. Hideq also took issue with the content of
certain expert medical reports that had been placed before the SST-GD but again
the SST-AD reasonably concluded that any medical information excluded from
these reports could have been addressed through secondary reports being placed
before the SST-GD and that this ground of appeal did not disclose any error on
the part of the SST-GD. Finally the SST-AD concluded that the real world
context that the SST-GD is required to consider in assessing an individual’s
work capacity was adopted in this case (Villani v Canada (Attorney General),
2001 FCA 248 at para 39).
[23]
In summary the SST-AD and SST-GD decisions reflect
the required elements of justification, transparency and intelligibility and
falls within the range of possible, acceptable outcomes defensible in respect
of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[24]
The parties did not seek costs and none will be
awarded.
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